Ending Zero Tolerance: The Crisis of Absolute School Discipline

The first part of the title of Professor Derek W. Black’s book, Ending Zero Tolerance, captures the beginning of the book. The early focus on the Ratner case, an important zero tolerance case, is a good building block for the argument that zero tolerance policies must be rolled back. [T]he very first sentence of his Introduction points to the expanded discussion and the real core of the book. He writes, “[o]ver the past two decades, school discipline has grown increasingly harsh and impersonal” (p. 1). The second part of his title is, “The Crisis of Absolute School Discipline.” Responding to this crisis is the real focus of his book and his creative response — the development of a constitutional fundamental right to education that would move disciplinary decisions of school administrators to a heightened level of scrutiny by the courts. Thus, the principal argument advanced in the book “is that constitutional protections are the only absolute check on abuses in school discipline” (p. 18).

This review will explore the two elements of Professor Black’s title of his provocative and very interesting book. He links the two, writing: “zero tolerance and harsh discipline treat normal and generally unavoidable indiscretions as serious misbehavior” (p. 15). Zero tolerance will be discussed, followed then by the exploration of the failure of the current system of discipline, and finally the proposed solution of a constitutional right to education.

Law and the necessities of educational practice often combine when confronted with the duty to provide and maintain a safe environment for learning. Consequently, I will first explore the foundation of discipline and “judicial disengagement” that undergirds Black’s argument.

DISCIPLINE IN THE PUBLIC SCHOOLS: FROM FRIENDS TO ENEMIES

Schools through in loco parentis have historically acted with “presumptive benevolence” towards their students. This changed in the late 1970s, wherein educators who were once friends of students became their enemies. Black cites Goss v. Lopez, the seminal Supreme Court case that held that public school students have a property interest in their education which cannot be denied without the due process of law. He draws a connection between the rise of the harsh discipline of African American students and the Supreme Court’s historic Brown v. Board of Education decision in 1954 (p. 32-42). The initial response to desegregation was a suspension rate for African American students that was two to three times the rate of white students. This trend towards harsh discipline “became a full-scale, hardened reality in the 1980s and 1990s” (p. 42). Schools, Black argues, no longer used discipline as a benign tool to educate their students. Instead, students became enemies to be controlled, especially if they were African American. He writes, “[t]oday, school officials’ and teachers’ overall perception of the disciplinary process is solidly adversarial” (p. 41).

Having spent 18 years in the public schools as a teacher, principal, and superintendent of a small rural school district in California, I would suggest that the characterization of discipline as “solidly adversarial” and a movement from friends to enemies needs greater nuance. Discipline in the classroom, by means of which a teacher maintains a learning environment, involves a continuum from a look, to proximity to the student, to a private word, to classroom discipline, to sending the student to the principal for possible further discipline. Discipline options available in the principal’s office may include more punitive outcomes. As an educator in both of those roles (teacher and principal), my goal as a professional was not to be the friend of my students, but to treat them with the respect and fairness that they deserved, and to be friendly in my interactions. Enemy and adversary, while they may characterize some student/teacher relationships, I do not believe are the best descriptors for the majority of educators and their students.

Black’s discussion of the unequal treatment of African American students when it comes to a comparison of the number of disciplinary actions taken and the severity of sanctions is on target. Welch and Payne support Black’s contention regarding the likelihood of a disproportionate application of “extreme discipline” to African American students (2010, p. 25). This unequal application of harsh penalties is well documented, and is unacceptable.

The judicial response to educators as adversaries and enemies in Goss v. Lopez, Black argues, failed; and he refers to the due process hearings as “prepunishment ceremonies” (p. 59). Goss v. Lopez identified a constitutional right to due process for public school students who faced a suspension of as little as one day. Black’s analysis is thoughtful and helpful in grounding his proposition for the recognition of a fundamental right to education (37-42) in chapter one and chapter two Judicial Disengagement (52-77). He concludes, “[t]hus, Goss remains an unreinforced decision, insufficient to meaningfully protect against arbitrary or harsh discipline” (p. 58). Having found that Goss does not adequately find the truth nor serve the interest of all parties, the table is set for a constitutional right to education which has “the potential to place an absolute limit on almost all harsh discipline, not just irrational discipline” (p. 206).

ZERO TOLERANCE: AN INTOLERANT APPROACH?

The author’s analysis of the issues associated with the implementation and impact of zero tolerance is spot on. Zero tolerance is an excellent choice as an example of harsh and irrational discipline in which “good intentions have run amuck” (Judge Hamilton (concurring), Ratner v. Loudon City Public Schools, 2001, p. 143). Black starts his introduction with a full discussion of Ratner and a casting of the deep concerns about zero tolerance policies. Chapter 4, Making Discipline Rational, and Chapter 5, Individualizing Discipline, form the core of the discussion of zero tolerance and harsh discipline.

Chapter 4 builds on the inadequacies of Goss with its focus on procedural due process and the exploration of the lack of rationality that often characterizes zero tolerance -based discipline. He argues that the use of substantive due process should place limits on zero tolerance policies and harsh discipline. Essentially, he argues that zero tolerance policies as applied do not sufficiently differentiate between illegal and dangerous behavior and non-dangerous behavior (e.g., possessing benign nail clippers). In short, the insertion of substantive due process into disciplinary proceedings may appropriately constrain arbitrary governmental action.

Professor Black identifies three pillars that tie substantive due process with some of the problems in zero tolerance. The first pillar is the establishment of intent. The case law discussed provides several examples of students who received harsh punishment under zero tolerance when there was no intent to commit a violent act with a weapon, or when there was no knowledge of the weapon.

The second issue is culpability. Here, the discussion goes too far in questioning individual culpability because of the environment of the school. Black writes, “the argument here is far simpler: student’s culpability for misbehavior is further diminished in dysfunctional schools, as the schools, not just the students, are to blame” (p. 157). While stating that schools should not take all of the blame, “the point is that when a school is failing to deliver a quality education, it likely bears some culpability for students’ misbehavior” (p. 158). What the calculus for comparative culpability is, is not explored here, but obviously must be factored in when deciding on punishment. This may be a difficult criterion to define and to apply in an evenhanded manner. How much responsibility does a school have for the misbehavior of a student remains unexplored.

The third pillar is harm. What harm has occurred? What harm is likely based on the object or questioned instrument?

Pillars one and three are sound and defensible. Pillar two may be appropriate if the concept of shared culpability is not stretched beyond a reasonable point.

THE CONSTITUTIONAL REMEDY: THE CALL FOR CIVIL RIGHTS ADVOCATES

The author, after tilling the soil of zero tolerance and harsh punishment, turns explicitly to sow his preferred solution –– a constitutional right to education. Identifying education as a fundamental right under a state’s constitution provides a much larger lever than the due process protections of Goss v. Lopez and incremental policy making. He supports his proposal through his earlier argument on the contributing culpability of dysfunctional schools in impacting the behavior of their students. “Student misbehavior is a function of individual choices that students make, but individual student misbehavior is also a function of the structure and environment of schooling in which those students act” (p. 180). Consequently, by focusing on the school as the change object, a constitutional right stating that education is a fundamental right of the student forces the school to change to accommodate that constitutional right. Balancing education as a fundamental right with the need for discipline faces a number of challenges. Black looks to school finance litigation as the vehicle to establish the fundamental right. He asserts, “the case for extending school finance precedent to discipline is compelling. The foregoing studies solidly establish a close connection between discipline, the environmental climate, and academic outcomes” (p. 193). Furthermore, he asserts that delivering adequate and equal educational opportunities could “easily” sweep in “an obligation to better manage school discipline and related policies” (p. 194).

This is a far-reaching proposal. Those states (e.g., California) that currently recognize that education is a fundamental right, I don’t believe include disciplinary policies as encompassed in that constitutional right, beyond what Goss v. Lopez has identified. Such inclusion would raise a number of questions. First, could a broad constitutional right stating that education is a fundamental right include school discipline? Professor Black argues yes, asserting that “the state is both vicariously and directly responsible for negative climates that persist in school districts. Thus, the state cannot cast blame on districts” (p. 199). The role of the state in influencing the school district, let alone the school level decisions regarding discipline and climate, are arguably attenuated. Therefore, how will a state remedy any claim that a school has violated the fundamental right of a student because of a disciplinary decision that the school made? What state disciplinary laws directly negatively impact harsh discipline?

Another important consideration is the test that is used to judge whether the action of the state has violated a fundamental right. Black believes that a fundamental right would be focused on striking down “irrational and counterproductive discipline practices” (p. 206). Courts use strict scrutiny analysis when considering potential violations of a fundamental right. This standard is very high. It is has often been characterized as “strict in name, but fatal in practice.” The high bar of strict scrutiny analysis involves a three-step process to ascertain the constitutionality of a law. First, the law must further a compelling state interest and not simply an important state interest or a legitimate state interest. In addition, the means used to achieve the compelling state interest must be necessary to serve the asserted interest, and the means must be narrowly drawn.

A constitutional claim of a violation of a student’s fundamental right to an education may be predicated on a loss of the education, including a one day suspension as found by Goss v. Lopez. The school would have to show that the decision furthered a compelling state interest and that the suspension is necessary and narrowly drawn to serve the compelling state interest. Is any particular disciplinary decision necessary? Is there an alternative? Are disciplinary decisions made by a principal always narrowly drawn? Will daily school disciplinary decisions be subject to the decisions of judges far removed from school classrooms? The essential question may well be, can principals, charged with maintaining discipline, consistently make disciplinary decisions that meet the requirements of strict scrutiny analysis? If not, we may paralyze our schools necessary response to misbehavior and disruption.

Black suggests that a challenge to a disciplinary decision “based on quality and equitable opportunities would address [students’] interests and require schools to address the root of disciplinary problems –– the environment and disciplinary approach to students” (p. 207). It is highly problematic, given the crush of the daily responsibilities of educators, that the requirements of strict scrutiny analysis could pass constitutional muster.

CONCLUSION

Derek Black’s book is an important contribution to the law and policy discussions of educators, policy makers, and professors. One of the ways that I judge the importance of a book is how many yellow markers and scribbles in the margin there are. There are a lot in my copy of the book. I encourage professors, policymakers, and educational leaders to seriously consider the many and important questions raised by Professor Black. While I raise questions about his position on the constitutional right to an education encompassing school discipline, I do not question our shared commitment to establishing and maintaining a system of discipline that consistently treats students with fundamental fairness and respect. While not necessarily friends, we can never become enemies to our students.

Todd A. DeMitchell, Ed.D. is the John and H. Irene Peters Professor of Education in the Department of Education and the Justice Studies Program

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